What’s next for the nuclear ban treaty?

The official draft text of a treaty to ban nuclear weapons is likely to be published in the next two weeks (15-26 May). This timing has been determined by the intention to avoid distracting from the NPT PrepCom, drawing to a close on 11 May. Written by the Chair of the process, the draft will be considered by states at the next round of negotiations to be held at the UN headquarters in New York from 15 June-7 July. That leaves ban treaty proponents two weeks to lobby governments around the world and get their support.

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On a Friday evening in late March, disarmament ambassadors and diplomats from one hundred and thirty two states spilled out of Conference Room 4 in the basement of the UN in New York and returned to their posts around the world. For five days, they’d been in the early stages of negotiations for a nuclear weapons ban treaty, a process mandated under UN General Assembly resolution A/RES/71/258 last December. I came as an observer from London, looking for ways to understand the ban treaty within the wider context of international disarmament efforts.

The ban treaty process has been boycotted by the world’s nuclear-armed states and many of their allies. On Monday of that week, Nikki Haley, the US Ambassador to the UN – accompanied by officials from 21 allied states including the UK – took the unusual step of holding a press conference outside the General Assembly to protest and delegitimise the process. Some called it a ‘picket line’.

The atmosphere inside the General Assembly, however, was calm and cooperative. For the diplomats involved, March was all about trying to frame the debate. Though there was a general agreement that the treaty’s central objective is to prohibit the use and threat of use of nuclear weapons, and that the achievement of that objective is paramount, but the specifics demanded debate. The pursuit of a comprehensive, effective, and enforceable set of prohibitions must be balanced against the need to achieve consensus and entry into force, the time available, the mire of verification and other tricky issues, and common sense.

The process benefited from an interactive approach between diplomats and civil society participants, which allowed for constructive exchanges and a free flow of expertise. Procedural matters were also dealt with deftly (Palestine was granted a seat, but chose not to attend), leaving plenty of time for substantive discussions.

So what should we expect from the draft when it comes out in the next few days?

General scope and purpose of the treaty

The penholder’s most important decision is to define the scope and purpose of the treaty, beyond its agreed core objective of prohibiting the possession of nuclear weapons. As a representative from Venezuela asked in March: is this treaty expected to organically grow, through the addition of protocols and implementation mechanisms, into a comprehensive nuclear weapon convention; or, is it intended just to be a simple declaratory prohibition that precedes a set of further treaties?

In the convention approach one would expect a more detailed list of provisions to act as foundations for further development, but carefully worded to avoid unfortunate loopholes in an eventual comprehensive nuclear weapon convention.

Proposed prohibitions include: the use or threat of use; possession; research; design; development; production or manufacturing; acquisition; stockpiling; retention; deployment; stationing; transfer; transit; overflight; testing; financing; and assisting, encouraging or inducing other states to engage in these activities. Many also included a number of positive obligations, such as: the irreversible decommissioning and destruction of existing warheads/related materials; verification, transparency and accountability mechanisms; providing victim assistance; protecting whistleblowers; reporting to a five year review conference; and the acceptance of penal sanctions to prevent or suppress violations.

A leaner, more declaratory prohibition has a greater chance of achieving consensus within the June-July session, meaning that diplomats don’t need to go back to the General Assembly, cap in hand, to ask for an extension. The lack of detailed provisions might also make it more inclusive, though ambiguities and inconclusive interpretations of its simple provisions (in the absence of clear definitions) could create implementation difficulties later.

There was support for both approaches in the room. Some states and members of civil society read out comprehensive lists of prohibitions to be included in the treaty’s main provisions, with many arguing they would be unwilling to accept fewer prohibitions in this treaty than currently exist in their regional nuclear-weapon-free zone treaties. Cuba, Egypt and Iran pushed most strongly for comprehensive treaties, though many view these states as spoilers, participating for optics and political positioning rather than pragmatic progress. Others raised only those they viewed as the most important; Sweden, for instance, seemed to advocate a hybrid approach, with some back and forth over the specificity of these words and phrases in the main text.

Ultimately, it’s likely that a degree of common sense will be applied such that the final text reflects the object and purpose of the negotiations. The limited time available to the participants to achieve the conference’s aims is another practical issue that may go some way towards deciding upon the approach: five days in March, and seventeen days in June-July – all in all, less than a month.

What will be in the preamble?

There was near unanimous agreement that the treaty should build upon, strengthen, and most importantly, not undermine other key nuclear instruments such as the NPT, CTBT and NWFZs. Many states also mentioned the importance of this treaty contributing ultimately to General and Complete Disarmament (GCD), as mandated under UNGA resolution A/RES/14/1378, and referred to in Article VI of the NPT.

A number of states and civil society members asked for specific mention of the treaty process’ humanitarian motivations, to strengthen the legal norm against nuclear use. Though it was stated a number of times that the use or threat of use of nuclear weapons would already be illegal under Article 2.4 of the UN Charter, this assumption was persuasively challenged by reference to Article 51, which outlines that ‘nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs,’ and the inconclusive legality of use described in the 1996 ICJ Advisory Opinion.

Some felt that this unresolved legal tension about the legality of the use of nuclear weapons itself indicated a legal vacuum and therefore warranted a ban, and that explicit reference to international humanitarian law, as well as human rights law and customary law relating to nuclear weapons, would clarify this legal ambiguity. However, several delegations noted that codified prohibitions within a treaty might have the adverse effect of weakening a growing opinio juris that some actions are already prohibited, given the extent to which these bodies of law have developed in recent years.

Several delegations and members of civil society also sought to include specific mention of nuclear weapons survivors, including the Hibakusha of Japan – such as Setsuko Thurlow, who spoke at the conference – as well as Aboriginal Australians, Algerians, Nevadans, Pacific Islanders and others who have suffered the effects of nuclear weapons testing.

What will be in the main provisions?

The treaty’s provisions will depend on its agreed general scope and purpose. However, number of distinct issues were the subject of extensive debate.

Testing: Some delegations questioned whether ‘testing’ needed to be explicitly prohibited, or whether it would be covered by provisions prohibiting ‘development.’ On this, Ecuador queried what purpose avoiding the explicit mention of testing would have other than to add ambiguity, and Professor Zia Mian, the Editor of Science and Global Security, persuasively noted that tests have historically not only been carried out in development but also to understand the physics and effects of nuclear weapons and ensure their reliability after deployment.

Other delegations argued that the CTBT already covered this aspect of the nuclear regime, and that duplication would both lead to confusion and reduce the incentives for states to lobby the others to bring the CTBT into force. On this, Professor Mian noted that the CTBT is not yet (and may never be) in force, and furthermore, that it allows a state to withdraw in the supreme national interest and request permission for underground tests for peaceful purposes. South Africa’s Ambassador Mxakato-Diseko added that the CTBT does not include a prohibition on computer simulations or subcritical testing, which probably ought to be covered in the spirit of the treaty.

At present, all nuclear-armed states have refrained from testing for nearly two decades, except North Korea. Instead, they have sought workarounds to ensure reliability and confidence in the arsenal. In the United States, for instance, the Stockpile Stewardship programme manages this task. However, there is concern in Washington that these workarounds may not be sufficient in 20-30 years time, and the temptation to resume testing on a small scale is likely to increase with time. Withdrawal from a self-imposed moratorium is far easier than a legally-binding one, and there will be voices in Washington and the national laboratories calling for the United States to keep this option open for future contingencies.

Transit: In the same intervention, Ecuador queried whether a prohibition on nuclear weapon materials transiting across one’s territories would be comprehensively covered by a prohibition of ‘assistance, inducement or encouragement,’ or whether it too should be explicitly included. Other states were concerned that the implementation and enforcement of such a prohibition, which would de facto require the inspection of every shipping container or cargo, would be near impossible. Austria asked whether a state would be in breach of the treaty if it was unaware that nuclear weapon parts were transiting its territory, or if a nuclear submarine were to covertly enter its territorial waters.

Financing: There was some debate over whether ‘financing’ should be prohibited, or whether that too would be covered under ’assistance, inducement or encouragement.’ This potential provision has attracted particular support from civil society, who see it as a primary way to stigmatise possession and engage firms via their codes of corporate social responsibility.

Verification and elimination: The extent to which the treaty should cover verification and elimination generated hot debate. However, an intervention in March by Gaukhar Mukhatzhanova, from the James Martin Center, was influential. Ms Mukhatzhanova argued that it would be impossible to negotiate verification or elimination provisions without the attendance of the nuclear weapon states, due to a void of technical knowledge and expertise and the lack of available time, and that any attempt to include detailed provisions on these matters may in fact be detrimental to the treaty.

Ms Mukhatzhanova instead framed the question around whether this will be a ‘join first, disarm later’ treaty, or whether prior disarmament will be a precondition for accession. This affects where verification and elimination come in:

Disarm first, join later (the ‘South Africa plus’ model). Following the chronology of the South African disarmament programme, in which unilateral disarmament was followed by accession to the NPT and an invitation to the IAEA to verify its stockpile destruction, this model would propose that a nuclear weapon state could only join the treaty having eliminated all of its nuclear weapons. The drawback of such an approach, Ms Mukhatzhanova noted, would of course be that possessor states would continue to proceed at their own paces, so the impact of the treaty would be in question.

Join first, disarm soon. Alternatively, dismantlement and verification could be removed from the treaty text entirely, and managed at the time of accession. This would resemble the process in which each country negotiates its own bespoke additional protocol with the IAEA. This approach leaves open questions about how such a process would be run and with what oversight, and gives the treaty a strongerspirit of participation and cooperation.

For Sweden, verification needed only to be ‘credible and sufficient,’ and suggested that any signatory could sign the Additional Protocol. But Iran questioned whether the IAEA would be suitable for the role, given that the Association operates under Board of Governors populated by ‘at least 50 states not at this conference.’ I’d predict that there will be a token mention of verification – if not, opponents that claim the ban treaty is not grounded in reality will be strengthened – but that the details will be left out.

Entry into Force: Towards the end of the week, states suggested numbers of signatories for the treaty to enter into force. Much was made of the excessively high entry into force provision of the CTBT, and there was a general agreement that the number should hover around the 50 state mark. Sweden put the number highest, at 80 states, while Austria put it as low as 30 states. A strongly worded treaty may still get through if the number is low, but the penholder will know that such an approach could also risk dividing the non-nuclear weapon states between those who will sign and those who will not, and one would suspect she will be aiming for unanimity.

Looking forwards

Nuclear-armed states and ban treaty advocates will be studying the draft treaty text with a legal eye to see how, if at all, these provisions have been worded. Civil society deliberately chose not to suggest a pre-prepared draft text, knowing that skilled diplomats can often overcome deadlocks with clever wording. Ambiguity can be deployed strategically, to leave doors open for stronger legal interpretations in future. But it can also be used to fudge provisions that many would consider to deserve stronger and more explicit prohibitions. Let’s see what they come up with.